Monthly Archives: March 2013

A year ago today, I helped organize a discussion on civil/human rights rhetoric in America at the Schomburg Center. The impetus for the program was the 100th birthday on civil rights legend Bayard Rustin, and with Occupy still fresh in minds, there was a great hook to discuss the need for greater social and economic equality. We brought together NYU’s Burt Neuborne, Columbia’s Kendall Thomas, and historian Ida E. Jones in a conversation moderated by Cathy Albisa, the executive director of the National Economic and Social Rights Initiative. While the full event was two hours long, I made a quick highlight reel.

I didn’t have much time this week to gather my thoughts on the Supreme Court’s handling of the Proposition 8/DOMA arguments (yet I did find time to doodle caricatures of the justices), but I thought some of the quotable highlights coming out of oral arguments were pretty priceless.

While the first round of oral arguments surrounding gay marriage was the big event before the Supreme Court today, the Court also issued a 5-4 opinion in Florida v. Jardines, which advances the dialog both on the state of the Fourth Amendment and privacy issues generally. In Jardines, the issue was whether police use of drug-sniffing dog to sniff for contraband on the defendant’s front porch was a “search” within the meaning of the Fourth Amendment. By a slim majority, the Court held that it was.

This is what our protection against “unreasonable searches” has become: a single-vote away from letting police walk up to our front doors with dogs in order to see if they alert to anything suspicious. What I think is even more alarming about the decision is how little privacy was discussed, let alone acknowledged. Only three judges–curiously, all three women–recognized that the police’s behavior clearly invaded the defendant’s privacy. The ultimate holding was that bringing a dog onto one’s property was a trespass, and the Fourth Amendment specifically protects against that. But while defaulting to a property-protective conception of the Fourth Amendment has the virtue of “keep[ing] easy cases easy,” as Justice Scalia put it, it ignores that nuanced reality that the Fourth Amendment was designed as a tool to obstruct surveillance and to weaken government.

The dissent, meanwhile, was ready to weaken the Fourth Amendment even more. While this case was in many ways directly analogous to a prior decision, Kyllo v. United States, where the Court restricted the use of thermal goggles to inspect a house, the dissenters made the alarming assertion that “Kyllo is best understood as a decision about the use of new technology.” What makes that rationale scary is that Kyllo included the unfortunate invocation that whether or not government surveillance constitutes a search is contingent upon whether or not the technology used is “a device that is not in general public use.” This creates the not only the possibility but also the incentive to use technological advances to diminish the Fourth Amendment’s protection. It creates a one-way ratchet against privacy.

I am not the first person to suggest that the Supreme Court’s Fourth Amendment jurisprudence is utterly incoherent. I particularly enjoy the description that our Fourth Amendment is “in a state of theoretical chaos.” Last year, facing a case where the government attached a GPS unit to a car, tracked a suspect for a month, and never got a warrant, the Court unanimously concluded this violated the Fourth Amendment. That was great. More problematic, the case produced three very different opinions, that could not even cleanly divide along ideological lines. What it boils down is this: we are a serious privacy problem in this country.

And while its easy to point a finger at a power-hungry government, the blame rests with us all. We have been quick–eager even–to give up our privacy, particularly as we have embraced a binary conception of privacy. We either possess it, or our secrets our open to the world. We have been conditioned to think our privacy ends when we walk out the front door, and now we live in a world where nothing stops anyone from looking down on everything we do from an airplane, a bit lower from a helicopter, and, yes, soon even lower from a drone. We have no expectation of privacy in our trash anymore.

Just look at Facebook! Facebook isn’t even a product–it’s users are the product. Vast treasure troves of personal data flows into the business’ coffers, and it wants more. As The New York Timesreported today, Facebook’s data-collection efforts extend far beyond its mere website. Facebook doesn’t even stop when you leave the internet. But worry not, says Facebook, “there’s no information on users that’s being shared that they haven’t shared already.”

I’m hesitant to quote Ayn Rand, but since an acquaintance shared this sentiment with me, it has dwelt in my mind:

Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.

Perhaps our collective future is, as Mark Zuckerberg posits, destined to be an open book. Perhaps Google CEO Eric Schmidt is right when he cautions that “[i]f you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” I am certainly not immune to oversharing on the Internet, and for whatever my privacy is worth, I don’t really have anything to hide. But that’s not the point. Before anyone embraces a world where the only privacy that exists is in our heads, I would suggest reading technologist Bruce Schneier’s rebuttal:

For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.

Of course, as my boss describes it, Adam and Eve’s flight from the Garden of Eden had less to do with shame and more to do with attempting to escape the ever-present eye of God. Some would suggest we might have been better off in that idyllic paradise, but I much prefer to keep a secret or two.

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After many months, my former employer has posted an interview I conducted with Nan Hunter, an associate dean and constitutional law scholar at Georgetown Law Center, and Nancy Polikoff, a professor of law and an expert on sexuality and the law. To mark the Supreme Court’s hearing of two cases impacting same-sex marriage, I spoke to the pair by phone to preview the arguments and what legal question comes next for the LGBT community.

In the public relations battle between The New York Times and Tesla over the paper’s poor review of Tesla’s Model S electric car, the real story may be the serious privacy issues the whole imbroglio demonstrated. After The Times’ John Bruder wrote a less-than-flattering portrayal of his time with the Model S, Tesla Motors CEO Elon Musk challenged the review using information provided from the vehicle’s data recorders. In the process, Mr. Musk revealed that “our cars can know a lot about us,” writes Forbes’ Kashmir Hill. For example, Mr. Musk was able to access detailed information about the car’s exact speed and location throughout Bruder’s trip, his driving habits, and even whether cruise control had been set as claimed.

“My biggest takeaway was ‘the frickin’ car company knows when I’m running the heater?’ That’s a bigger story than the bad review,” gasped one PR specialist. Indeed, our cars are rapidly becoming another rich source of personal information about us, and this presents a new consideration for drivers who may be unaware of how “smart” their cars are becoming. Connected cars present a bountiful set of bullet points for marketers, but whether consumers are being provided with the necessary information needed to understand the capabilities of these vehicles remains an open question.

And it is not just car companies that will possess this wealth of information. Progressive Insurance currently offers Snapshot, a tracking device that reports on drivers’ braking habits, how far they drive, and whether they are driving at night. Progressive insists the Snapshot program is neither designed to track how fast a car is driven nor where it is being driven, and the Snapshot device contains no GPS technology, but the technological writing is on the wall. A host of marketers, telcos, insurers, and content providers will soon have access to this data.

In the very near future, parents will easily be able to track their teenagers driving in connected cars. Assuming cars permit their drivers to violate traffic rules, it may be impossible to actually get away with risky driving habits. Telcos increasingly find cars to be a lucrative growth opportunities. “[Cars are] basically smartphones on wheels,” AT&T’s Glenn Lurie explains, and indeed, many automakers see smartphones as an integral part of creating connected cars.

While we continue to grasp with the privacy challenges and data opportunities presented by smartphones, we have only just begun to address the similar sorts of concerns posed by connected cars. In fact, privacy concerns have largely taken a backseat to practical hurdles like keeping drivers’ eyes on the road and more pressing legal concerns such as liability or data ownership. Indeed, at the last DC Mobile Monday event, the general consensus among technologists and industry was that consumers would willingly trade privacy if they could have a “safer,” more controlled driving experience. Content providers were even quicker (perhaps too quick) to suggest that privacy concerns were merely a generational problem, and that younger drivers simply do “not think deeply about privacy.”

That may be true, but while industry may wish to treat our vehicles as analogous to our phones, it also remains true that the average consumer sees her car as an extension of her home. While the law may not recognize this conception, industry would be wise to tread carefully. OnStar’s attempt to change its privacy policy in 2011 proves illustrative. OnStar gave itself permission to continue to track subscribers after they had cancelled the service, and to sell anonymized customer data to anyone at anytime for any purpose. The customer backlash was brutal: “My vehicle’s location is my life, it’s where I go on a daily basis. It’s private. It’s mine,” went one common sentiment.

A recent article in The L.A. Times wondered whether car black boxes were the beginning of a “privacy nightmare” or just a simple safety measure. The answer likely falls somewhere in between, and if the Tesla episode reveals anything, it is that the striking the proper balance may be more difficult than either privacy advocates or industry expect.While Mr. Musk had a wealth of data at his disposal and Mr. Bruder had only a book of observations to counter that data, neither party has been able to provide a clear account of Mr. Bruder’s behavior behind the wheel. For example, what Mr. Musk termed “driving in circles for over half a mile,” Mr. Bruder claimed was looking for a charging station that was poorly marked. Technologist Bruce Schneier cautions that the inability of intense electronic surveillance to provide “an unambiguous record of what happened . . . will increasingly be a problem as we are judged by our data.”

Most everyday scenarios presented by connected cars will not produce a weeks long dispute between a CEO and a major newspaper. Instead, Schneier notes, neither side will be able to spend the sort of time and effort trying to figure out what really happened. Certainly, consumers may find themselves at an informational disadvantage. In the long term, drivers may be willing to trade their privacy for the benefits of an always connected car, but these benefits need to be clearly communicated. That is a discussion that has yet to be had in full.